P.L.D.1955 S.C.240
INTRODUCTION:
" The Governer General having considered the political crisis with which the
country is faced has with regret came to the conclusion that the
constitutional machinery has broken. He therefore, has decided to declare
state of emergency throughout Pakistan. The constituent Assembly as at
present constituted has lost the confidence of the people and can no longer
function. The ultimate authority vests in the people who will decided all
issues including constitutional issues through their representatives to be
elected afresh. Election will be held as soon as possible."
The proclaimation did not say that the constituent Assembly is dissolved. It
simply said that it has lost the confidence of the people, and
No where in the proclamation the provisions or section of the Government
of India Act,1935, under which this action was taken, was specified.
The constituent Assembly had amended section 9, 10, 10A and 10B of the
Government of India Act,1935 as adopted for Pakistan under which he was
devastated of his power to dismiss Prime Minister.
The president of the assembly Molvi Tamizzudin filed two writ petitions i-e
MANDAMUS and QUO-WARRANTO in the Chief Court of Sindh against the
Governor General's order of dissolution as unconstitutional, illegal, ultra
virus, without jurisdiction, in-operative and void.
The Federation of Pakistan and certain federal ministers who were affected
by the judgment, went in appeal against the verdict of the Chief court of
Sindh. It was argued on behalf of the federal Government that the
Constituent Assembly was rightly dissolved.
The Federal court of Pakistan heard the counsel of the parties for full fifteen
days and gave its judgment on March 21, 1955. The Federal Court of
Pakistan overruled the judgment of the chief Court of Sindh on a technical
point that section 223 of the government of India Act, 1935 under which the
chief court has issued the writs was not yet a law. This section 223 was
added to the government of India Act, 1935 through an amendment. The
constituent Asembly had passed the amendemnt but was not assented to by
the governor General.
Thus the Federal court by majority of 4-1 gave its verdict in favour of the
Federal Government and rejected Molvi Tamizzudin's petition challenging
Governor General's proclamation of the October 24, 1954 by arguing that
G.G was a constitutional part of the legeslation and therefore, every act
passed by Constituent Assembly required Governor General's assent.
The most ssignificant point in the decesion of the Federal Court was that it
did not go into the question whether the Constituent Assembly was rightly
dissolved by the Governor general.
As the country was faced with legal vacume, G.G proclaimed the Emergency
Power Ordinance, 1955 and assumed power to,
the actions of G.G came for discussion before the Federal Court in Yousaf
Patel vs Crown case.
The court while dealing with the case criticized the action of the G.G in
enacting Constitutional legislation and in setting up a constitutional
convetion as being beyond his powers.
This judgment was a severe blow for the G.G efforts to revalidate the invalid
laws and make constitutional provisions through an ordinance.
As the country was facing the severe Constitutional cises, G.G therefore
filed a reference in the Federal court of Pakistan. He sought the court's
opinion on the following points.
The court after carefull consideration of the issues raised, came up with the
following details.
Regarding the dissolution of the constituent assembly the court said the the
dissolution had become imperative as the constituent asembly had failed to
frame the constitution for Pakistan in reasonable time.
The court further held that the dissolved constituent assembly was set up
under an executive order and not under law. Therefore, the new constituent
Assembly can also be setup by similar order provided that it should be a
representative body and the new Contituent Assembly could be competent
to exercise all powers conffered by Indian Independence Act 1947.
CONCLUSION
the decesion of the Federal Court of Pakistan set the turn for all the future
decesions.
G.G decesion to dissolve the constituent Assembly struck the first serious
blow to the weak democratic institution in Pakistan.
This decesion has deep repercussion on the subseqent legal and
constitutional development in Pakistan, the fruits of which we have eaten
for a number of time throughout in our constitutional history.
The Federal court in order to make the G.G's act valid through this case
declared as many as 46 laws null and void.